| Grinage v City of New York |
| 2007 NY Slip Op 09204 [45 AD3d 729] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Fanny Grinage, Appellant, v City of New York, Defendant,and Fulton Street Realty Venture, LLC, Respondent. |
—[*1] Cohen, Kuhn & Associates, New York, N.Y. (Jonathan D. Gorman of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), datedJanuary 8, 2006, as denied that branch of her motion which was for leave to enter judgmentagainst the defendant Fulton Street Realty Venture, LLC, on the issue of liability upon its failureto appear or answer the complaint, and granted the application by that defendant for leave toserve a late answer.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted the application by the defendant Fulton Street Realty Venture, LLC, for leave to serve alate answer is treated as an application for leave to appeal from that portion of the order, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, that branch of the plaintiff's motion which was for leave to enter judgment against thedefendant Fulton Street Realty Venture, LLC, on the issue of liability, is granted, and theapplication by the defendant Fulton Street Realty Venture, LLC, for leave to serve a late answeris denied; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
On her motion, the plaintiff demonstrated her entitlement to a default judgment against thedefendant Fulton Street Realty Venture, LLC (hereinafter Fulton Street), on the issue of liability.She submitted proof of service of the summons and the complaint, her affidavit of the factsconstituting her claim, and her attorney's affirmation regarding Fulton Street's failure to timelyappear or answer the complaint (see CPLR 3215 [f]).
To avoid the entry of a default judgment, Fulton Street was required to demonstrate areasonable excuse for the default and a meritorious defense to the action (see Giovanelli v Rivera, 23 AD3d616 [2005]; Zino v Joab Taxi,Inc., 20 AD3d 521, 522 [2005]; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556 [2005];Ennis v Lema, 305 AD2d 632, 633 [2003]). The determination of what constitutes areasonable excuse lies within the sound discretion of the court (see Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353, 356 [2005]; Ennis v Lema, 305 AD2d at 633). FultonStreet's proffered excuse, that its delay in appearing and answering was caused by its insurancecarrier, was, under the circumstances, not a reasonable excuse (see Ennis v Lema, 305AD2d 632, 633 [2003]). Accordingly, the Supreme Court erred in denying that branch of theplaintiff's motion which was for leave to enter a default judgment against Fulton Street on theissue of liability (see Juseinoski v Boardof Educ. of City of N.Y., 15 AD3d 353, 356 [2005]; Ennis v Lema, 305 AD2d at633).
Furthermore, in the absence of a cross motion for such relief (see CPLR 2215), theSupreme Court erred in granting Fulton Street leave to serve a late answer (see Giovanelli vRivera, 23 AD2d at 616; Blam vNetcher, 17 AD3d 495, 496 [2005]). Crane, J.P., Ritter, Fisher, Covello and Dickerson,JJ., concur.